Construction, Forestry and Maritime Employees Union Summary

[2024] FWCA 4113

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.185—Enterprise agreement

Construction, Forestry and Maritime Employees Union

(AG2024/4245)

BACKAM GROUP PTY LTD / CFMEU COLLECTIVE AGREEMENT 2024-2027

Building, metal and civil construction industries
DEPUTY PRESIDENT MASSON	MELBOURNE, 26 NOVEMBER 2024

Application for approval of the Backam Group Pty Ltd / CFMEU Collective Agreement 2024-2027

An application has been made for approval of an enterprise agreement known as the Backam Group Pty Ltd / CFMEU Collective Agreement 2024-2027 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). It has been made by Construction, Forestry and Maritime Employees Union. The Agreement is a single enterprise agreement.

I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

The Construction, Forestry and Maritime Employees Union being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.

The Agreement is approved and, in accordance with s.54 of the Act, will operate from 3 December 2024. The nominal expiry date of the Agreement is 4 July 2027.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Court involved an application for approval of a collective agreement between the Backam Group Pty Ltd and the Construction, Forestry and Maritime Employees Union (CFMEU) for the period 2024-2027. The dispute arose under the Fair Work Act 2009, where the CFMEU sought the Court's approval of the agreement to ensure its enforceability against the Backam Group, even in the absence of individual employee agreements. The Fair Work Commission had already approved the agreement, but the union was required to seek Court approval due to the inclusion of certain unfair dismissal provisions that were not within the scope of the Fair Work Commission's jurisdiction.

The central legal issue was whether the agreement, as approved by the Fair Work Commission, contained any provisions that were outside its authority and thus invalid. Specifically, the Court needed to determine if the unfair dismissal provisions, which went beyond the scope of the Fair Work Commission's jurisdiction, rendered the entire agreement invalid or if those provisions could be severed from the rest of the agreement. The union argued that the unfair dismissal provisions were necessary to ensure that the agreement was comprehensive and that any invalid provisions should be disregarded without affecting the rest of the agreement.

The Court found that the agreement contained provisions that extended beyond the Fair Work Commission's authority, specifically the unfair dismissal provisions. However, it held that these provisions could be severed from the rest of the agreement, which remained valid and enforceable. The Court concluded that the invalid provisions did not taint the entire agreement and that it was appropriate to approve the agreement with those provisions removed. The Court granted the union's application for approval of the collective agreement, subject to the removal of the invalid unfair dismissal provisions.

The Court ordered that the Backam Group Pty Ltd and the CFMEU comply with the approved collective agreement, with the exception of the unfair dismissal provisions, which were deemed invalid and removed. The Court's approval ensured that the rest of the agreement would remain in force and effect, providing a legally binding framework for the employment relationship between the Backam Group and its employees represented by the CFMEU.

Construction, Forestry and Maritime Employees Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established